cause, in the opinion of the court, it violates fundamental rights or principles, if it was passed in the exercise of a power which the Constitution confers. Still less will the injustice of a constitutional provision authorize the courts to disregard it, or indirectly to annul it by construing it away. It is quite possible that the people may, under the influence of temporary prejudice, or mistaken view of public policy, incorporate provisions in their charter of government, infringing upon the right of the individual man, or upon principles which ought to be regarded as sacred and fundamental in republican government; and quite possible also that obnoxious classes may be unjustly disfranchised. The remedy for such injustice must rest with the people themselves, through an amendment of their work when better. counsels prevail. Such provisions, when free from doubt, must receive the same construction as any other. We do not say, however, that if a clause should be found in a constitution which should appear at first blush to deconsideration can have no force with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office upon themselves, or if, under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set any boundary to the powers of the government. Written constitutions will be more than useless. Believing as I do that the success of free institutions depends upon a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for latitudinarian constructions which are resorted to for the purpose of acquiring power; some evil to be avoided or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the Constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them." Whether there may not be circumstances under which the State can be held justly estopped from alleging the invalidity of its own action in apportioning the political divisions of the State, and imposing burdens on citizens, where such action has been acquiesced in for a considerable period, and rights have been acquired through bearing the burdens under it, see Ramsey v. People, 19 N. Y. 41; People v. Maynard, 15 Mich. 470; Kneeland v. Milwaukee, 15 Wis. 454.

mand a construction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes and aims of these instruments. When such a case arises, it will be time to consider it.1

Duty in Case of Doubt.

But when all the legitimate lights for ascertaining the meaning of the Constitution have been made use of, it may still happen that the construction remains a matter of doubt. In such a case

it seems clear that every one called upon to act where, in his * opinion, the proposed action would be of doubtful [* 74] constitutionality, is bound upon the doubt alone to abstain from acting. Whoever derives power from the Constitution to perform any public function is disloyal to that instrument, and grossly derelict in duty, if he does that which he is not reasonably satisfied the Constitution permits. Whether the power be legislative, executive, or judicial, there is manifest disregard of constitutional and moral obligation by one who, having taken an oath to observe that instrument, takes part in an action which he cannot say he believes to be no violation of its provisions. A doubt of the constitutionality of any proposed legislative enactment should in any case be reason sufficient for refusing to adopt it; and, if legislators do not act upon this principle, the reasons upon which are based the judicial decisions sustaining legislation in very many cases will cease to be of force.

Directory and Mandatory Provisions.

The important question sometimes presents itself, whether we are authorized in any case, when the meaning of a clause of the Constitution is arrived at, to give it such practical construction as will leave it optional with the department or officer to which it is addressed to obey it or not as he shall see fit. In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but

1 McMullen v. Hodge, 5 Texas, 34. See Clarke v. Irwin, 5 Nev. 111.

not as so limiting the power in respect to which the directions are given that it cannot be effectually exercised without observing them. The force of many of the decisions on this subject will be readily assented to by all; while others are sometimes thought to go to the extent of nullifying the intent of the legislature in essential particulars. It is not our purpose to examine the several cases critically, or to attempt what we deem impossible to reconcile them all; but we shall content ourselves with quoting from a few, with a view, if practicable, to ascertaining some line of principle upon which they can be classified.

There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employing or failing to employ negative words which imported that the act

should be done in a particular manner or time, and not [*75] * otherwise. The use of such words is often very con

clusive of an intent to impose a limitation; but their absence is by no means equally conclusive that the statute was not designed to be mandatory.2 Lord Mansfield would have the question whether mandatory or not depend upon whether that which was directed to be done was or was not of the essence of the thing required. The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute." This rule strikes us as very general, and as likely to include within its scope, in many cases, things which are of the very essence of the proceeding. The questions in that case were questions of irregularity under election laws, not in any way hindering the complete expression of the will of the electors; and the court was doubtless right in holding that the election was not to be avoided for a failure in the officers appointed for its conduct to comply in all respects with the directions of the statute there in question. The same court in another case say: "Statutory requisitions are deemed directory only when they

Slayton v. Hulings, 7 Ind. 144; King v. Inhabitants of St. Gregory, 2 Ad. & El. 99; King v. Inhabitants of Hipswell, 8 B. & C. 466.

Dubuque, 7 Iowa, 284.

.

2 District Township v.

3 Rex v. Locksdale, 1 Burr. 447.

People v. Cook, 14 Barb. 290; s. c. 8 N. Y. 6.

relate to some immaterial matter, where a compliance is a matter of convenience rather than of substance." 1 The Supreme Court of Michigan, in a case involving the validity of proceedings on the sale of lands for taxes, laid down the rule that "what the law requires to be done for the protection of the tax-payer is mandatory, and cannot be regarded as directory merely."2 A similar rule was recognized in a recent case in Illinois. Commissioners had been. appointed to ascertain and assess the damage and recompense due to the owners of land which might be taken, on the real estate of the persons benefited by a certain local improvement, in proportion as nearly as might be to the benefits resulting to each. By the statute, when the assessment was completed, the commissioners were to sign and return the same to the city [* 76] council within forty days of their appointment. This provision was not complied with, but return was made afterwards, and the question was raised as to its validity when thus made. In the opinion of the court, this question was to be decided by ascertaining whether any advantage would be lost, or right destroyed, or benefit sacrificed, either to the public or to any individual, by holding the provision directory. After remarking that they had held an assessment under the general revenue law, returned after the time appointed by law, as void, because the person assessed would lose the benefit of an appeal from the assessment, they say of the statute before the court: "There are no negative words used declaring that the functions of the commissioners shall cease after the expiration of the forty days, or that they shall not make their return after that time; nor have we been able to discover the least right, benefit, or advantage which the property owner could derive from having the return made within that time, and not after. No time is limited and made dependent on that time, within which the owner of the property may apply to have the assessment reviewed or corrected. The

1

1 People v. Schermerhorn, 19 Barb. 558. If a statute imposes a duty and gives the means of performing that duty, it must be held to be mandatory. Veazie v. China, 50 Me. 518.

'Clark v. Crane, 5 Mich. 154. See also Shawnee County v. Carter, 2 Kansas, 115. In Life Association v. Board of Assessors, 49 Mo. 512, it is held that a constitutional provision that "all property subject to taxation ought to be taxed in proportion to its value" is a prohibition against its being taxed in any other mode, and the word ought is mandatory.

Marsh v. Chestnut, 14 Ill. 223.

next section requires the clerk to give ten days' notice that the assessment has been returned, specifying the day when objections may be made to the assessment before the common council by parties interested, which hearing may be adjourned from day to day; and the common council is empowered in its discretion to confirm or annul the assessment altogether, or to refer it back to the same commissioners, or to others to be by them appointed. As the property owner has the same time and opportunity to prepare himself to object to the assessment and have it corrected, whether the return be made before or after the expiration of the forty days, the case differs from that of Chestnut v. Marsh,' at the very point on which that case turned. Nor is there any other portion of the chapter which we have discovered, bringing it within the principle of that case, which is the well-recognized rule in all the books." 2 The rule is nowhere more clearly stated than by Chief Justice Shaw, in Torrey v. Milbury, which was also a tax case. "In considering the various statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well settled, that all those measures that are intended for the security of the citizen, for insuring equality of taxation, and to enable every one to know with reasonable certainty for what polls and for what real estate he is taxed, and for what all those who are

[*77]

1 14 Ill. 223.

*

2 Wheeler v. Chicago, 24 Ill. 108.

3 21 Pick. 67. We commend in the same connection the views of Lewis, Ch. J., in Corbett v. Bradley, 7 Nev. 108: "When any requirement of a statute is held to be directory, and therefore not material to be followed, it is upon the assumption that the legislature itself so considered it, and did not make the right conferred dependent upon a compliance with the form prescribed for securing it. It is upon this principle that the courts often hold the time designated in a statute, where a thing is to be done, to be directory. No court certainly has the right to hold any requirement of a law unnecessary to be complied with, unless it be manifest the legislature did not intend to impose the consequence which would naturally follow from a non-compliance, or which would result from holding the requirement mandatory or indispensable. If it be clear that no penalty was intended to be imposed for a non-compliance, then, as a matter of course, it is but carrying out the will of the legislature to declare the statute in that respect to be simply directory. But, if there be any thing to indicate the contrary, a full compliance with it must be enforced."